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Tuesday, March 23, 2010

Judges redeployment stalls tobacco suit

The joint suit instituted by the Lagos State government and the Environmental Rights Action/ Friends of the Earth Nigeria (ERA/FOEN) against five tobacco companies before a Lagos High Court sitting in Igbosere, could not continue on Monday because of the redeployment process going on in the Lagos judiciary.
At the resumed hearing of the suit, the presiding judge, Raliat Adebiyi, noted that she would not be able to continue with the hearing of the applications brought by the counsel, since she has been transferred to the Ikeja division of the Lagos High court, and is trying to collate the files before her. The hearing of the applications was, therefore, adjourned to April 19, 2010, in Ikeja, where she will continue to preside over the suit amongst other suits.
Justice Adebiyi has been deployed from the commercial division of the Lagos High court sitting in Igbosere to the Land section of the court sitting in Ikeja.
The claimants had instituted the action against the tobacco companies - British American Tobacco (Nigeria) Limited, International Tobacco Limited, British American Tobacco Plc and British American Tobacco Investment Limited - on the ground that tobacco smoking has severe health implications, including but not limited to cancer, cardiovascular and pulmonary complications, noting that the defendants have recently admitted these facts.
They had alleged that, in spite of the obvious knowledge of the adverse effect of their product, the defendants have fraudulently targeted the young and the under-aged in their advertisement and marketing.
That, through the use of market surveys and sophisticated advertising, the defendants have utilised such means as music, cinema and fashion, to attract young and under-aged persons to smoking.
They submitted further that the mandatory health warnings inscribed on their packs are ineffective, as the defendants promote a retail strategy of sale by the stick, whereas the individual sticks that most consumers purchase have no such warnings.
The claimants’ causes of action are based on negligence, public nuisance, restitution, strict liability, and conspiracy to commit actionable wrongs, among others.
It was contended that the overall effect of the defendants’ course of conduct is that the state government is called upon to expend its resources in treating tobacco related ailments caused by the use of defendants’ products, maintaining that the state government spends at least N316, 000 per month on each of these ailments.
Consequently, the claimants want an order of mandatory injunction compelling the defendants, their successors-in-title, privies and/or agents to cease the marketing, promotion, distribution and sale of tobacco-related products to minors or under-aged persons.
An order of mandatory injunction restraining the defendants from representing or portraying to minors or persons under the age of 18, any alluring and/or misleading image regarding tobacco related products, whether by direct depictions, pictorials, advertorials, images, words, messages, sponsorships, branding and/or through overt or covert and/or subliminal means.
Furthermore, the claimants asked for an order of mandatory injunction restraining the defendants from marketing, distributing, selling, or putting into the stream of commerce, either by themselves or through their distributors, agents, resellers, trade partners, marketers, and or any other person, any tobacco related products of whatever make or brand within a one thousand (1000) metre radius of any schools, hospitals, cinemas, playhouses or locations, children’s shopping areas, childcare facilities or such other public places in Lagos State, which are predominantly a location for minors and young persons under 18 years to “hang out”, play, assemble, congregate for any purpose whatsoever, including but not limited to educational, recreational, social, religious, sports or any other purposes.
In addition, they urged the court to grant an order of mandatory injunction compelling the tobacco companies to fund a tobacco control programme to be administered and controlled by an independent third party, who is to be appointed by the Lagos State government, targeted at minors and young persons under 18 years.
They also want a declaration of the court that the tobacco related products are addictive, and a declaration of the court that the tobacco related products as manufactured, marketed, promoted, distributed and sold by the defendants, are hazardous and injurious to public health.
The claimants also sought special, general, punitive and anticipatory damages in the sum of $21,617,605, 885.17 from the defendants.